United States District Court, D. Colorado
ORDER ON DISCOVERY MOTIONS
Y. Wang United States Magistrate Judge
matter is before the court on two discovery motions:
(1) Plaintiff's Motion to Quash Subpoena Duces Tecum
(“Motion for Protective Order”) [#31, filed
December 19, 2017]; and
(2) Defendant Kai, Inc.'s (“Defendant” or
“Kai”) Motion for Sanctions, Pursuant to F.R.C.P.
37(d) (“Motion for Sanctions”) [#32, filed
December 20, 2017].
undersigned considers the Motions pursuant to 28 U.S.C.
§ 636(c) and the Order of Reference dated May 30, 2017
[#13]. The court entertained oral argument by the Parties on
January 17, 2018 [#34]. Having reviewed the Motions and
associated briefing, the entire docket, and the applicable
case law, the court respectfully DENIES the Motion for
Protective Order and GRANTS IN PART and DENIES IN PART the
Motion for Sanctions for the reasons stated herein.
court has previously discussed the background of this matter
in detail [#28] and, therefore, will focus only on the facts
most pertinent to the instant Motions. Plaintiff Vicki Mize
(“Plaintiff” or “Ms. Mize”) initiated
this action by filing her Complaint, pursuant to the
Americans with Disabilities Act (“ADA” or
“Act”), 42 U.S.C. § 12101 et seq.,
with the United States District Court for the District of
Colorado on April 14, 2017. [#1]. Ms. Mize “is an
individual with disabilities which substantially limits major
life activities.” [Id. at ¶ 7]. Because
of her disabilities, Ms. Mize depends on the use of a
wheelchair for her mobility; accordingly, she qualifies for
and requires “reasonable accommodations to access and
use” places of public accommodation
(“PPA”). [Id.]. Defendant owns and/or
operates one such PPA in Castle Rock, Colorado. [Id.
at ¶ 1].
November 29, 2016, Plaintiff allegedly visited
Defendant's PPA to enjoy its offered goods and services;
however, Plaintiff “was denied full and equal access
and full and equal enjoyment of the facilities, services,
goods and amenities.” [Id. at ¶¶
8-9, 31-32, 41]. Plaintiff alleges that members of the public
who do not suffer from physical disabilities can utilize
Kai's PPA without any restrictions. [Id. at
¶ 9]. Plaintiff asserts that Defendant has violated
Title III of the ADA by discriminating against patrons with
disabilities similar to Plaintiff. See [id.
at ¶¶ 34-36, 38-41]; see also 42 U.S.C.
§ 12182(a). Plaintiff seeks declaratory relief;
injunctive relief in the form of a preliminary and permanent
injunction requiring Kai to remove all barriers to the use of
its PPA by persons with disabilities and ordering Kai to
undertake the necessary alterations to make its PPA
accessible to individuals with disabilities; as well as
attorney's fees and costs. [Id. at 8].
8, 2017, this court entered a Scheduling Order in this case
that set forth the claims asserted by Plaintiff and
contemplated the deposition of Ms. Mize. [#16 at 2, 7]. On
November 29, 2017, Defendant noticed the deposition of Ms.
Mize for December 20, 2017, at the offices of the Boulder
County Bar Association. [#32 at 1]. On December 11, 2017,
Plaintiff's counsel requested that the location of the
deposition be moved to Castle Rock, Colorado, due to
Plaintiff's medical condition. [Id.]. Defendant
agreed, served an Amended Notice of Deposition, and reserved
a space and court reporter for Castle Rock. [Id. at
December 20, 2017, approximately 30 minutes prior to the
start of the deposition, Plaintiff's counsel informed
Defendant that Ms. Mize was experiencing distress over
appearing for the deposition and, approximately 20 minutes
later, informed Defendant that Ms. Mize was contemplating
going to the hospital. [Id. at 3-4]. Around 1:10
p.m., counsel for Ms. Mize advised defense counsel that Ms.
Mize would not appear for the scheduled deposition.
[Id. at 4]. At the hearing on January 17, 2018,
Plaintiff's counsel responded to this court's inquiry
that Ms. Mize had not, in fact, sought any medical treatment
on December 20, 2017. The Parties also disputed whether Ms.
Mize had offered to dismiss her lawsuit against Defendant and
whether Plaintiff's counsel had informed defense counsel
that Ms. Mize refused to appear for a deposition at any time.
also contends that Ms. Mize failed to appropriately respond
to written discovery and produce requested documents. [#32 at
2-3]. The Parties and the court discussed the written
discovery issues during the January 17 Status Conference, in
lieu of Defendant filing a formal motion to compel. Defendant
challenged Ms. Mize's invocation of the attorney-client
privilege and work product doctrine. [#34]. Defendant also
challenged Ms. Mize's refusal to produce documents
related to Litigation Management and Financial Services
(“Litigation Management”) based on the
attorney-client privilege or work product doctrine.
hearing, Plaintiff's counsel offered an Affidavit from
Ms. Mize, explaining her medical condition and the
circumstances surrounding her nonappearance on December 20.
[#34-7]. Ms. Mize also submitted the documents reflected on
her privilege log for the court's in camera
review. See [#34-1 through #34-6]. This court also
permitted the Parties to submit additional briefing no later
than January 19, 2018. [#34]. On January 19, 2018, Defendant
submitted a “Response” to the Motion for
Protective Order [#35] and Ms. Mize submitted a Response to
the Motion for Sanctions [#36]. Defendant submitted a Reply
to the Motion for Sanctions on January 20, 2018. [#37]. These
Motions are now ripe for review.
Rule 26 Rule 26(b)(1).
26(b)(1) of the Federal Rules of Civil Procedure defines the
scope of permissible discovery in this action. Fed.R.Civ.P.
26(b)(1). The Rule permits discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case.
Id. In considering whether the discovery sought is
proportional, the court weighs the importance of the
discovery to the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
scope for discovery does not include all information
“reasonably calculated to lead to admissible
evidence.” The amendments to Rule 26 effective December
1, 2015, purposefully removed that phrase. See In re Bard
Filters Products Liability Litig., 317 F.R.D. 562, 564
(D. Ariz. 2016). As explained by the Bard court, the
Advisory Committee on the Federal Rules of Civil Procedure
was concerned that the phrase had been used incorrectly by
parties and courts to define the scope of discovery, which
“might swallow any other limitation on the scope of
discovery.” Id. (citing Fed.R.Civ.P. 26
advisory committee's notes to 2015 amendment). The
applicable test is whether the evidence sought is relevant to
any party's claim or defense, and proportional to the
needs of the case. Id. Rule 401 of the Federal Rules
of Evidence defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more or
less probable than it would be without the evidence.”
30 and 26(d)(3).
30(a) provides that a party may take an oral deposition of
its adverse party without leave of court. Fed.R.Civ.P. 30(a).
Rule 26(d)(3) addresses the sequence of discovery and
provides that “[u]nless the parties stipulate or the
court orders otherwise for the parties' and
witnesses' convenience and in the interests of justice:
… methods of discovery may be used in any
sequence.” Fed.R.Civ.P. 26(d)(3).
serves as the mechanism for enforcing compliance with
discovery obligations and, among other things, allows the
court to compel a party to respond to proper discovery
requests-whether deposition questions, interrogatories,
requests for production, or requests for admissions.
Fed.R.Civ.P. 37(a)(3)(B). Rule 37(d) also permits this court,
upon motion, to sanction a party for failing to appear for
her own deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Permissible
sanctions include reasonable expenses, including
attorney's fees, unless the failure was substantially
justified or other circumstances make the award of fees
unjust. Fed.R.Civ.P. 37(d)(3). It is also well established
that the party seeking to invoke work product immunity or
attorney-client privilege has the burden to establish the
applicability of the immunity/privilege. See, e.g.,
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d
540, 542 (10th Cir.1984).
the court's subject matter jurisdiction arises from
federal law, federal common law with respect to privileges
governs in this action. Roe v. Catholic Health
Initiatives Colorado, 281 F.R.D. 632, 636 (D. Colo.
federal common law, the attorney-client privilege arises (1)
where legal advice of any kind is sought; (2) from a
professional legal advisor in his capacity as such; (3) the
communications relating to that purpose; (4) made in
confidence; (5) by the client; (6) are at his instance
permanently protected; (7) from disclosure by himself or by
the legal advisor; (8) unless the protection is waived.
Id. (citing Williams v. Sprint/United Mgmt.
Co., No. 03-2200-JWL-DJW, 2006 WL 266599, at *2 (D. Kan.
Feb. 1, 2006)).